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tv   Key Capitol Hill Hearings  CSPAN  June 26, 2014 2:00am-4:01am EDT

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massive then you can understand why that would frighten the cloud computing industry because that turns them into public performers whenever they are handling content. >> they get the subscriber who says you can get any of these things. is it's not as though the subscriber initiates it. you have choices and they are providing at these choices and those choices are content. >> it's no different justice ginsburg if i have a rabbit ears on my tv. >> from the user's perspective an additive bandage if i'm watching cable. you just have a different content selection but it looks the same to you. somebody else is providing you with a menu and you pick off that menu. >> the menu is what is technologically available.
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their broadcast signals available at a local area and they are limited because that is what the broadcasters make available and simply providing a user guide that says you continue this channel or you can tune into that channel if you want to pick up on program or another can't be the difference between a content provider and in facilitating the use of your equipment.
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>> case 13132 riley v. california. mr. fischer. >> mr. chief justice and may it please the court. this case it involves applying the core production of the fifth amendment to a new factual circumstance. it has eyes been the case that an occasion of an arrested not give the police officers authority to search through the private papers and bureaus and cabinets of somebody's house. that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their
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pockets. >> just to test the principle for why the police can search and see some objects, consider a gun. the arrestee has a gun on his person and the police take the gun. it is part of the reason for that seizure to obtain evidence of the crime or is it just for the safety of the officer in the safety of the community? >> what this court said in robinson on page 135 is the reason supporting the authority are the two chanel factors which are gathering evidence to prevent its destruction and officer safety. >> gathering evidence in order to make -- for instance with the gun could they take fingerprints? the gun is in the police station where the arrestee is being booked. can they take fingerprints and b can they copy the serial number and can they see how many shows
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were left in the chamber? all for the purpose of building a case of obtaining evidence? 's. >> that is done every day. once it's in the police department's lawful position i think edwards says they can do all that. >> so with the principle then is that some objects that are obtained from the arrestee can be examined in order to build the state's case, is that at least the beginning premise that we can accept except in your case although obviously there are problems of the extent and intrusiveness of the search in your case but not in the gun hypothetical. >> justice kennedy the court has never described that as one of the things. if you want to think about this case the way you thought about the automobile searching can't it would be the premise that you are right if it were the beginning premise it would only
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be that come at the. infoglut -- footnote nine edwards the fourth amendment reasonableness. >> i think gant is probably the best statement in support of the principle that i have suggested and you might say that is limited to automobile accident. >> are important things understand if you want to start thinking about gant because both in terms of its history and its modern application is dramatically different from what we have here. >> mr. fisher before we do that, have you been accurate in what he said about robinson and the courts cases? in weeks the courts said the right always recognize under english and american law to search the person of the accused when legally arrested to discover and sees the fruits are evidences of crime.
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is that starkly inaccurate? do you want us to repudiate that? >> no your honor. what we said and you quoted it, and she mentalities of the crime have always been something that can be seized from a person. weeks as this court said in robinson itself was dicta and there was that historical authority to take the fruits of the evidence, fruits and instrumentalities. >> instrumentality or evidence? you changed it to instrumentality. >> weeks uses the word evidence that justice scalia because it was not an issue in that case the bishop treatise that you cited in your concurrence talks about tools and ensure mentalities. i don't think we have to debate that here because even if we are in a world where the police can seize some evidence and keep it and use it for the prosecution simply for that reason even though they don't fear destruction there are profound problems with searching a
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smartphone without a warrant because even under the robinson roll this court has recognized for example when it comes to blood draws, something like a strip-search there are limits even to the robinson rule. >> smartphones do present difficult problems would let me ask you this. suppose your client for an old-school guy and he didn't have a cell phone. he had a billfold and he had photos that were important to him in the billfold. he had that at the time of the arrest. do you dispute the proposition that the police could examine the photos in his billfold and use those as evidence against him? >> no. that's the role of robinson. any physical item on an arrestee can be seized and inspected and then used as evidence. >> what is the difference between looking at hardcopy photos in a billfold and looking at photos that are saved in the
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memory of the cell phone? >> the difference is digital information versus physical items. physical items and pose a safety threat and have distraction possibilities that are not evident with digital -- what's more want to get into the digital world you have the framers concern of general warrants and writs of assistance. >> how does that a flight -- apply to these hardcopy photos in a billfold? they don't present a threat to anybody and i don't see that there is much of the difference between the government argues there's a greater risk of destruction of digital evidence and a cell phone than there is in a photo so i don't quite understand how that applies to that situation. >> let me take this one thing at a time. the theory of robinson that the government itself found is any physical item if it contains a razor blade or a pen needs to be inspected to be sure so you have
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a categorical rule because of the ad hoc page of the west. the police don't have to distinguish physical items one from the other. >> let's stick with justice alito's hypothetical. they find a business card or something which shows car services and they turn the card over and read it and they are not looking for a pin or explosive. they are trying to read what's on the card. >> i think nothing else once it's in their hands justice kennedy. >> what if they turn the card over? >> that's fine under the categorical rule. the rule obviates these exact difficult case-by-case determinations. you could make an argument that if i knew to if it were a diary or billfold case he might be up to make an argument that the court wisely decided in the robinson that we need a categorical rule that's easily admissible in the field. when you have digital evidence that categorical rule hasn't the exact -- opposite direction.
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it implicates vast amounts of information not just the photos themselves but the gps location of data linked in with it, all kinds of other information that is intrinsically intertwined in smartphones. >> including information that is specifically designed to be made public. what about something like facebook or twitter? any privacy interest in a facebook account is at least diminished because the point is you want these things to the public. >> mr. chief justice. >> my question is are
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information in the clouds so to speak is not accessible to officers. we submit that further would compound the difficulty of applying a rule in a circumstance. >> if this case we have to decide whether all the information that may be available in the smartphone can be examined by the police when
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the owner of the phone is arrested or can we just focus on particular evidence that was submitted in the clients tryout? >> the way you phrased the question i think that's the first cut if there's looking at the particular pieces of evidence here which are photos and videos, but we don't think you can write an opinion that would distinguish those from anything else or almost anything else on a smartphone. the state's argument here is that those are not quote fundamentally different from other things that people would carry. >> could the police obtain a warrant in this case? >> in all likelihood the s. and would have plenty time to do so. >> than the evidence that is feasible under the warrant is reasonable and justice alito points out the fact that some of this evidence is reasonable. there is a limitation with
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reference to the way the police behaved as justice alito points out. it's limited just to this evidence. >> let me say a couple things about the warrant requirement and justice alito's question. this court has said time and again the mere fact that the police could have gotten a warrant and didn't. let me say a couple of things about the warrant requirement. >> it just goes to the fact that this is searchable under the fourth amendment standards. >> with the warren justice kennedy and me talk about why warrant is important. it poses a neutral observer and between the citizen and the police officer. perhaps more importantly it does two very big things. one is taken particularly requirements of the magistrate can say this is what you can look at in remember in this case the prosecution ultimately introduce photos and videos but that is not what the detective testified to in the trial.
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he said in. shay: m11 we looked at a whole lot of stuff on the phone and that was what in his words cautious side. >> you recognize and you just told justice kennedy that a warrant could be obtained. a warrant for why? a warrant for why? what would the police have to show? they apply for a warranted but with a warrant have to say? >> we give an example of a warrant in our footnote reply brief in there are many on the web from states that already require warrants. what they do as they say the police officer testifies perhaps somewhat like he testified at the suppression hearing. i suspect that this fellow was in a gang and i believe gang
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members keep certain kinds of things on their phone. this was a crime we are investigating and therefore these particular files within the phones are likely to contain evidence and the war and say with particularity here are the things you can look at and here's what you can't. more importantly justice ginsburg. >> you have told us it's hard to figure out what you can avoid it can't but it's easy for magistrate? is a possible for an arresting officer? >> much easier for magistrate and an officer under the stresses in the field. i agree it's not going to be perfect so let's look at what happens under our rule. >> along the same lines as justice cooley at the point you make in your brief argument is that the smartphone has everything. it has a person's whole life. if you are arresting somebody on the grounds of suspicion that he's a gang member and you have
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evidence to support that was part of the smartphone is not likely to have pertinent evidence? what application is not? here you have pictures and videos. i guess it's similar to what other issues have been raised. i don't know what the magistrate is supposed to put in the warrant. >> i would say this banking app. >> the banking app is going to say deposited $10,000 into his account. and it's going to coincide with the particular drug deal. >> mr. chief justice those arguments can be made on app by app basis but this is the benefit of our rule is supposed to the governments. with the government does is let the officer looked and then have a backend hearing where you suppress all the stuff he was not supposed to look at once you apply particularly requirements. once the officer has the war and we nccic since they don't have to have these hearings and district courts because once an officer does the proper search according to the warrant you
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don't have to have a suppression hearing. there's one other important thing that goes into a warrant which might've been lost -- glossed over too quickly in a breeze. it's how it can be kept and the retention of information raises fourth amendment concerns. my understanding in california is at least for some clients is not just that they are downloading the information in looking at it for the crime of arrests but keeping this information in databases ever-growing databases of every cell phone. >> what if you have a device that doesn't have brought information that a smartphone has? only a limited like if it bit that tells you how many steps you take in the defendant says i have been in my house all afternoon they want to see if he has walked for miles. it's not his whole life was a great part of your objection. is that something they can look at? >> probably not and this is the way the categorical rule if robinson categorical rule of robinson where it sleeps than
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the hypotheticals in one direction. obviously i don't have to win that argument today but i think that is how you would approach that question. if it bit and this is true even more so if smartphones tells you the kind of information the court was concerned about. it tells you modern smartphones work the inside of peoples house the appliances and they have cameras. they also monitor the inside of peoples bodies. >> what if the phone in this case for an old-fashioned flip phone so it had the capacity to take pictures of a much more limited memory. would it be a different case? >> i think that will be part of your conversation in the next case perhaps. the easiest way to decide the case right now in 2014 is to simply say digital evidence kept on modern cell phones are different than physical items.
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i don't think it's really worth going back in time to the most rudimentary device. >> what if a person had on disbursement compact disc? >> i think that might be the same kind of case you have now. remember the phone in this case had a removable memory card as many still do which by the way we were going to talk about destruction of evidence. that is why answered to destruction of evidence. it was on a removable memory cards that couldn't be erased remotely are password-protected. we have given lots of arguments in a brief that explained why the government's arguments as to why simply don't stand up. >> mr. fisher in earlier question you did not finish the answer. you are describing the difference between downloading by police of databases that they keep forever.
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what happens with materials that are returned pursuant to a search warrant? i they precluded from doing that? >> i wasn't sure i understood. >> i take it the ordinary rule is if the police lawfully see evidence in the physical world if it's a physical item that might at some point need to be returned to the owner but if it's something that can be made a photocopy of art remains in police files lawfully obtained information they can use into the future. you have real problems however when you apply that typical rule to digital information. now again what i understand the government itself and the federal government footnote 3 of its reply brief in worry acknowledges it's keeping an ever-growing federal database at least some of the information seized from smartphones. >> i'm sorry i don't know if you answer my question. can they do the same thing once a search warrant is issued? >> not necessarily.
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the beauty of a search search warrant if they can delineate retention rules. it can say here is how long you are allowed to keep information. here is who is allowed to look at it and who is not. >> frankly have to tell you i don't ever remember prosecutor coming to me with that kind of delineation. >> justice sotomayor that is what is happening in the digital world because we have new and different concerns than had arisen. >> mr. fisher would that be at such and see that would allow police to look at cell phones and if so what would those exigencies be? >> absolutely. there would be times at the scene where exigencies would allow it. first of all the two officer safety arguments the other side thinks of our hypothetical bomb or confederate ambushes this court recognized in chadwick exigent circumstances the concern about the experts have described and they make his brief we don't think would have ever arisen in a situation of
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legitimate concern but in a very odd world. >> i don't understand your first edges and circumstances. when there is a bomb but you don't know whether there is a bomb and we look in the fun whether there are associates on the way to kill the officer and release their confederate. you don't know until he look into the fun so how can that possibly be an exigent circumstance? >> i think surrounding facts and circumstances, in footnote night were dealing with a locked briefcase surrounding facts and circumstances might indicate. there's a hypothetical i believe on on page one in the amicus brief signed by the investigative agencies. it's a classic example of how the circumstances might apply. >> you would never be able to say surrounding circumstances give me reason to suspect that there is a bomb in the phone.
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to suspect that his confederates are on the way. >> i think you are right that that's going to be an extraordinarily rare circumstance. all i'm saying is if you have that extraordinarily rare circumstance you would not need to get a warrant. >> there is not an authority that i could find were the lawyer is arrested and they want his whole briefcase or read his diary and use site on page seven of your brief the learned hand 1916 case. is that the best discussion you can find? judge friendly mentions the diary situation. >> it's important if we are going to formulate some standard which limits the extent of the search and that is one of the problems in this case if say we
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rule for the government in this case or maybe it's not quite fair but if we will from the government we worry and it's not an exigent circumstance. is there some standard where we can draw a line which would still result in a judgment in your favor? it's not quite a fair question. you are not arguing the government's case. >> i don't want to tread on both lawyers in that case but certainly in my case we have asked for tory search were not even the state has contended the amount of information look at is equivalent to what someone could have carried around in the old days. >> can i say something? >> i'm going to say something first. [laughter] if the phone rings can the police answer at? >> there are cases on that mr. chief justice. all the cases we found our cases where the police had to warrant in hand and they have been held
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back against the police officers can answer the phone. questionably the police officers. >> a warrant for why? for somebody's arrests. how does that extend to your ability to enter the phone? >> i'm sorry justice scalia. an immediate search of the area. now certainly you could look at the caller i.d. coming through because i would be in plain view but if i can return to justice kennedy's question about the diary because there are couple of important aspects to that i would hope to be able to drop out. the reason i think that you don't find diary cases when you look for them is because people hardly ever carry a diary outside of the home. it was kept in a private drawer or in where it might be kept in the highly unusual circumstance where somebody did he might have a hard case. this is the opposite world. the modern reality of smartphones is it's an
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indispensable item for everyday life of a modern professional and indeed most anyone. you can't leave the house without it and consider yourself to be responsible and safe. so to take the world where the police might try to say we can get the diary because of the importance of the categorical rule under robinson applied that into a world where everybody has everything with them at all times. >> including the criminals that are more dangerous and sophisticated and more elusive for cell phones. that's the other side of this. >> justice kennedy before the mound has a balance built in. biggie are not saying they can't look at digital information. we are saying when they see that they can freeze the contents and then get a warrant and search what they are allowed to searching keep under the rules of that warrant. >> is it significant that the information is not protected by
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a password? >> at the other side were making an argument that this was not a search then i think that might be an argument they would deploy and i don't want to speak for the government but i think they also agreed that password protection does not matter and it certainly doesn't matter as to what information they get. their position is if we seize a corporate executive smartphone at the scene that is locked and protected under password if we can get that information back in our lab we get it all and they don't have to ask for a warrant. >> i know they argue it doesn't matter but i'm just wondering if your position is weakened by the fact that the individual did not seek the greater protection of a password? >> i don't think so. people don't lock their homes and they don't lock their briefcases. simply having it inside the phone protected by the person is enough to trigger the amendment. >> if i could reserve the rest of my time. >> thank you counsel.
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mr. dumont. >> thank you mr. chief justice and may it please the court. as mr. fisher has said mr. raley had been carrying physical photographs in his pocket there's no dispute the arresting officers could have looked at those photo asked to see whether they contained evidence of crime and does not become constitutionally unreasonable so mr. rarely carried photographs in digital form on a smartphone. the digital format does not make the photos make the vote is any less. >> in one of our court decisions in the past a series of practically speaking a person can only carry so much on their person. that is different because carrying the billfold of
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photographs is a billfold of photographs anywhere from one to five generally. not much more. but now we are talking about potential -- with digital cameras people take endless photos and it spans their entire life. you don't see a difference between the two things, what has now become impractical? the gps to follow people in a way that prior following by police officers in cars to not permit. >> i certainly see a distinction and we see the possibility in some cases potentially but what we don't see is that in this case the facts in this case or anything like it. the theory and if i'm only carrying five photographs or
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letters in the case of the chicago chase -- case they are likely to be very personal very private photographs so i'm not sure the expansion. >> mr. dumont in your argument and associate generals argument also a person can be arrested for anything. a person can be arrested for driving without a seatbelt and the police could take that phone and look at every single e-mail that person has written including work e-mails and e-mails to family members very intimate medications. they would look at all the person's bank records and look at all that person's medical data, could look at that person's calendar, could look at that person's gps and find out every place that person had recently. because that person was arrested for driving without a seatbelt.
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that strikes me as a very different kind of world than the kind of world that you were describing where somebody has pictures of their family in the billfold. why is it a marginal case. see it applies to to many arrested applies to everything on the cell phone. people carry their entire lives on cell phones. that's not a marginal case. that's a world we live in isn't at? >> the facts of this case are not someone's entire life on a cell phone. this cell phone had a handful of contacts. what we understand is they were 250 some odd contacts and 59 photos and perhaps 40 to -- maybe a minute each. >> the quarters to make a rule for the cases and what justice
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kagan pointed out is take an offense driving under the influence. privacy that we have in this case it is your world then that a cell phone is -- no matter what the crime and how relatively unimportant the crime is. that opens the world to misdemeanors. >> it's true that the court typically draws categorical lines and that is what the court said in robinson. it's also true there were court has repeatedly said those lines are drawn based on the generality of cases. they are not drawn based on a marginal case with a hypothetical potential. in this case it in the
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heartland. >> mr. dumont is what i'm trying to suggest to you is that you call it marginal but in fact most people now do carry their lives on cell phones and that will only grow every single year as young people take over the world. [laughter] i mean that's not a marginal case. they are computers. they have as much computing capacity as laptops did five years ago and everybody under a certain age, let's say under 40 has everything on them. >> i think you need to look at the generality of cases and first of all you will not be dealing with minor crimes. he will be dealing with serious crimes in second you'll be dealing with police. >> are you saying it's up to the discretion of the officer? if that's so then it leads to the next question. will they be able to get a warrant? >> we are trying to draw a line
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that can be applied by an officer in the field and there is not time to get a warrant either because there is need for information now or because. >> let's leave exigent circumstances out of it. you are not arguing for exigent circumstances here. >> what i would say going back to justice cooley is find our argument is the same things that mr. fisher concedes to justify the search of a person in the seizure of a phone which are they exigent circumstances needing to protect officer safety. c. is there any basis for the generality that there's a safety concern in a case where the phone is loaded or used to trigger a device or anything like that? >> we don't have a specific
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case. here's a case in california. it's called natoli. there is one where there is a late night of rest and it starts with a. >> ticket -- speeding ticket off the highway at night and it develops and maybe there's more going on in the person is under the influence and taken out of car. the officer looks at the cell phone. the first thing he sees when the turns the phone on is a picture of what appears to be a driver standings with two assault rifles posing with his assault rifles. i would say that changes the situational awareness of the officer in that situation and valuable information that was necessary at the time and could not have been gotten later. >> what does that have to do with my question? >> i'm merely saying it has to be safety. i can't think of a case where they stopped him and that there is phone and saw notes about bomb-making. >> i would assume you need to operate the phone to set off the
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bomb so once the police have the phone the bomb is not going to go off. >> that is true but it's also true of all the objects in the prior cases in other words in robinson where he secured the cigarette pack there's no question where there was a razor blade or heroin. the evidence would be destroyed. >> can i ask a question about the extent of your theory. we are talking about smartphones which aren't many computers but your theory would apply to ipads, computers, anything for example sitting next to a person in a car at their desk if they are arrested at their desk. anywhere if they carry it because you see a lot of people carrying the ipad or something comparable a tablet of some sort. you're hearing would permit a search of all of those things. >> objects that are on the person or associated with it.
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it doesn't necessarily extend. >> what is the rule? you are saying on the person. suppose it's in the car in a folder or suppose it's in the passenger seat. are you saying that you don't want to express an opinion about that or talk about what's in somebody's pocket? >> i would say the court has drawn different rules for that situation. if the person is removed from a car and there's reason to think there might be an arrest on the phone they can search and there's not they can't. but it's a different world. >> suppose i'm carrying my laptop in my backpack -- backpack. >> we need to go back to this volume question because there are two things in the cell phone. there's the volume question and
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then there is a connectivity and networking question. as to the final question i concede that in other cases what they seem to be concerned about is the idea that enough information and enough time looking at the could build an error marketable fortunate that some of the justices alluded to in robinson. it would be qualitatively different from what has been dumped before. there are differences in government surveillance and this is a choice that person is made to keep information on a phone and to have it but we think there's a possibility to get to that qualitatively different search but it's miles away from this case and the heartland. >> so there are three possibilities. possibility one smart bomb.
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possibility two yes, it's just like a piece of paper. they you find it in his pocket or possibility three sometimes yes and sometimes no. which of those three is yours? >> our position is information like this. >> of my three choices. [laughter] call the first choice never accept without a warrant, only coming on the award or three somewhere in between? which of the three choices are yours? >> it's in between. >> okay. my follow-up question is please tell me what you're in between rule is? >> by and between rural is for information of the same sort that we have been able to seize from person that includes diaries and letters, all other kinds of evidence photographs and address books.
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for evidence on that sort of the same rule should apply. i would leave the last explanation i would leave for another case. >> i guess i don't understand that you said if it could be. it could be reduced to a piece of paper. all your bank records you could have them on you. all your medical records you could just happen to have them on you. that would be absolutely everything wouldn't? >> bank records you can get from the banks of the subpoena now with a search warrant. >> the notion that you could get them legally and in some other way is never justified and ill legal search otherwise. >> it goes to the question of how sensitive is the information we are being told. >> cirullo sometimes. you say if it's the kind of
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thing that the police could have searched for if it was on the computer than they could search for it on the computer. since they can search for everything in your pockets when it isn't the computer then why isn't yours everything? by the way they don't know whether it is or is not going to turn out to be evidence. if it's in your trash box or wherever you put it. i don't know that. so i guess what you are saying is i thought it was category to the really it's category 3, always. why am i wrong? >> i think you inverted two and three. [laughter] >> that gives you time to think. [laughter] >> if the police are looking or
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have an investigative purpose to look for information on the phone to see see if there is evidence it seems to us that they should be able to look at the same kind of information they could have looked at in any previous context. >> that's a significant concession because the smartphones funds carry a lot of information that would not have been the sort of thing police looked at before. gps tracking information. the police could never have gotten that before so you are saying that is protective? >> i'm saying it raises a different set of issues. >> it seems to me in order to try to give some answers to justice kagan's concerns that maybe the distinction ought to be between serious and nonserious offenses. i don't think that exist in our jurisprudence and correct me if i'm wrong. >> that is correct. >> by the way gps information my
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wife might put a little note in my pocket. stephen remember to turn right at the third stoplight. go three blocks forward. of course you would have put in the information that showed where you were going as long as it was on paper. now it's in a gps so how does your role help? >> the gps would see if he did in fact turn right and drive somewhere else. [laughter] >> again we can conceive of situations in which the amount of information the kind of search would lead to a qualitatively different. >> you could amend your answer to say not just anything that somebody could have had that a person could have had a diary that records every place the person has ever gone in the last year. if theoretically possible but you could say an analog in the
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pre-digital era we have a similar -- similar to the jones case preview of a rule of law that was established in pre-digital area and now you have to apply to the digital era where the technology changes a lot of things. but if there is a close analogue in the digital era to something that would have been allowed in the pre-digital era that may be a different story. >> we certainly think that's right and we think that covers the information in the photographs in the short videos. it certainly covers anderson. >> and you were not willing to limit your position to searches that either/or in order to protect the officer or in order to preserve evidence or number three in order to find evidence
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of the crime of arrest, you are not willing to limit it that way? you would say whatever's on the person you can search? >> that is by far the most plausible one. so to say because. >> that gets you into the arrest for not wearing a seatbelt. it seems absurd that you should be able to search that person's iphone. and you can avoid that if you say -- like the vast majority cases this is not going to be a problem unless the officer can reasonably look for evidence of the crime of arrest. that would cover the bad cases but it won't cover like a seatbelt arrest. >> there is precedent in the court obviously for that rule. there's two things who would say about that. there are to be an objective standard new-line with these fourth amendment -- is should be
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was there probable cause to arrest and what was the probable cause to arrest for and also it should include the plainview concept. >> the arrested person has photos pre-digital age of course you can look at them. on the form -- phone there are photos. absolutely analogous there are 10,000 indeed his entire life history but in your role can the policeman looked at the photos by analog or not? because there are 10,000. what is the answer? >> in theory yes they can look. >> what we have is by the way i think there are very few things that you cannot find in an analog in the pre-digital age searches and the problem in almost all instances is quantity
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and how far a field you are likely to be going. why accept your rule? >> the fundamental rational basis of the robinson ruled i think is the fact that the arrest as justice. >> effect of the arrest necessarily and legitimately largely anything he or she has chosen to carry on the personnel. modern technology makes it possible for people to choose to carry a great deal of information but that doesn't change the fact that the reasonable expectation of a person is subject to arrest as the police will search the person. >> are you saying essentially that nobody has any expectation of privacy or somebody has to dramatically reduced expectation of privacy in anything that the person actually wants to keep?
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>> in other words one has to keep on cell phone at home in expectation for privacy? >> what we are saying is the choice is that consequences and the consequence is carrying this on a person if you're arrested the police will be able to examine it to see if there is an arrestable crime. >> thank you counselor. mr. dreeben. >> mr. chief justice and may it please the court. i think it may be helpful to the court before exploring to briefly understand why there is a categorical robinson rule and how cell phones implicate many of those concerns. the categorical robinson rulers wanted to the fact that when a person is carrying something on their person and they are subject to a legitimate proble problem -- probable cause arrest their expectations of privacy
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are reduced. not a lemonade if that's considerably reduced in the government on the other hand has several very compelling interest at the moment of arrest that are indicated by conducting a thorough search of the person in the things he has. avoids the distraction of evidence and protects officer safety and it allows the discovery of evidence that's relevant to the crime of arrest to enable prosecution. >> the understanding was here you can seize the phone and you can secure the phone and you could go to a magistrate and within an hour get per marsh -- permission to search but what is the reason your? the instrument itself is not going to be in danger because they have disabled it. so i don't understand why to cut
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the wind out of this picture? >> several answers to that question justice ginsburg. you could probably say the same thing about everything seized under robinson and edwards. once it's in the place of hands they could part in the back of the patrol car in the trunk and it would be safe than they could get a warrant that the balance has always been struck at the moment of arrest to allow the officers to fulfill the compelling interest in the matters that i previously described. the second and i think very critical thing about cell phones as they do differ in the amount of information that a person can carry on them and the amount of revelation about a persons life. that is true. they also differ in that they greatly facilitate criminal activity. they contain a great deal of evidence and most critically they are subject to destruction in a way that ordinary physical items are not. even if an officer has a cell phone in his hand he cannot guarantee unless it's disconnected from the network are somehow protected from the network that there won't be a
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remote like signal sent to the phone. >> do you have cases where that is cap and? >> have anecdotal reports from the fbi that has happened and they put into the question of to what extent can you protect a phone to the use of things like faraday bands. if you threw a phone into a faraday ban which is supposedly going to block network signals when you open it up it has to be similarly shielded shielded or will pick up a signal from a cell tower and that will wipe the foam. the fbi try to build a faraday room in a building that they later discovered verizon had put a cell tower on it and that cell tower put out a strong enough signal to richard. >> we have a case where this has been so bit they had a rule where they can't in michigan and vermont. any instance out of those states where these scenarios have taken place?
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>> i can't speak justice breyer. >> you don't know. so isn't this a problem that might be postponed because we have warring technologies etc. and you are saying now we should allow searches of small cell phones because there might be a technology that hasn't yet in fact been used in many of the states that have this rule. that sounds a little hypothetical and i'm not sure how to handle it. >> i think clearly the technologies available in growing technology to wipe funds remotely but the other critical problem that comes after the point about getting a warrant is encryption technologies increasingly being applied in cell phones. that's something that's clearly on the rise and when a phone is turned off corey locke kicks in and the phone in cripps it can be almost impossible to. >> let me stop you because you are making an argument in three
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related questions, okay? why can't you just put the phone or in airplane mode. >> can answer that one first? first of all is not always possible to find airplane mode on 500 or 600 models of phones that are out there. the officer is a lot of things to do when he arrest suspects. say he arrested five suspects in a car and they each have three cell phones. trying to find and put each one of them an airplane load and go a further step. >> you are confusing me because you've been out the search on the scene if you have had enough time at the precinct to put it on airplane mode -- i'm a little confused about what this argument is. how do you do it at the scene or two at the station so you have enough time to get the warrant by putting it on airplane mode. >> you don't necessarily have
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time to do it on the scene. i believe that's true. ..
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the attorneys present particular problems. >> does that present the exact home every cell phone has? >> i was referring to the privilege rule. the court looked at it. the lower courts that have looked at the questions that if a person is arrested holding a briefcase they can open the briefcase whether it is locked or unlocked and look at its contents. they can't just go through for interest. they can look for evidence that is relevant to comal activity and they do that in a way that is minimally invasive of privacy not just for the sake of doing it. >> some cell phones have tax returns so you would have a return on the jaywalker looking for a crime. >> if the court is looking for a rule that limits the ability of the police to search cell phones
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because cell phones are different from paper items in some respects but not all. the most reasonable rule to apply to be one that says when there is a reason to believe that there is evidence of the crime of the arrest on the phone the officers can look for that. when there is not they can't. you can imagine in every case they can look at everything so i will give you an example. someone is arrested for a gun crime and now we are going to look at the things that might be related to a gun crime. so whether he is for guns, whether he's done searches for gun stores his e-mails might say something about gun possession or gun purchase.
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the whole range of things. >> justice, i would acknowledge that fewer reasoning is correct in certain circumstances and for certain crimes. it wouldn't be the case for the crying or a bar fight or any other of the minor crimes who held the violations that are positive on the other side of vacation for respondents or the narrow approach to solve the searches. but i do think a couple of things are worth thinking about. in a serious offense a drug offense if the police didn't get a warrant they would be looking at the same thing because the only way to execute the line on the phone would be to engage in at least a cursory search of everything on the phone to see if it was related. >> but the whole idea of the war and is that the magistrate felt you you can look at those thin
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things. i would go so far to say that the magistrate can't narrow the warrant in any way that is appropriate. the fundamental point and i tried to serve there is a different balance in a moment of the arrest. at that moment the society interests are at their apogee locating evidence related to the arrest and apprehending the related suspects. and the suspect has a highly reduced privacy interest. >> four minutes mr. fisher. >> i think i heard four or five different proposed rules that i want to go through one each at a time. the states talked about a fundamentally different rule.
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and i think that the justices have already figured out 17 and 18 which would sleep in virtually everything on the phone to the extent that it wouldn't you have a really difficult struggle on a case-by-case basis to answer the difficult question whether any particular have fundamentally different information than existed in the non- digital world. i also heard a suggestion that if a smartphone is on to somebody it's different than if it is sitting next to them. them. that isn't correct if what the government says about the passwords satisfies them. remember it gives the authority without a warrant anything in the area if there is a distraction argument. so, the person that is arrested sitting in hi at his desk at the office into reaching area from his computer would be open to a full search under the government's rule.
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they need to present the password from kicking and. the first thing to make sure is that you understand those can apply only at the scene. when the officer takes the phone back to the police station two hours later and searches through. all the arguments whether an officer needs to be able at the scene can be left for another case and i think justice breyer is right that is the best of the government has shown is that there may be certain tightly limited circumstances were exigent circumstances would apply. i want t to say a few things on the password protection which we didn't talk about in the next argument. how it would be for the smart phone to seize the wireless and for an officer not to be able to address the concern at the scene that it might walk later and it's also worth noting in the footnotes that we attached the
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government is arguing in the lower courts that even if it is locked at the fifth amendment doesn't give the person the opportunity to refuse to diverge the password and the warrant. so it doesn't have any plight if they win the argument that it's making in the lower courts. justice kennedy committee suggested the possibility distinguishing between serious and long series. with all due respect the court's decisions in robinson and atwater was squarely presented and precludes the kind of determination for all the reasons the government argued in those cases. and then finally, justice william u. mentioned a couple of times the principle as applied to the case evidence you think you might find on the phone. there are two profound problems. first is the court recognized you need to be sure to protect the amount of privacy people had at the funding. the fact somebody might incidentally have an item on the person even in the rare case a
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diary or address book people are stored in the home and they are sacrosanct and arrest and that is what the threats around history says it cannot be the occasion to do that kind of search. justicejustice, you are right iu run the test through the world of crime the government might be able to identify the crying here or there that would be difficult to make an argument about. as we pointed out in the brief dui, lettering the person can make a fairly convincing argument sometimes that evidence on the phone would be a relevant. so that brings me where i want to and which is understanding what the rule of the government would do in terms of just ordinary police work. remember the case starts with a catchy beat the traffic stop license plate in its everyday police force traffic stops are at the beginning of the criminal investigation and a leverage point into searches.
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if you adopt a rule that says if you can make an argument that evidence on the phone would be relevant to the crying of a rest you may have an e-mail from the dmv telling you you better come in and renew. if that opens up every american's life to the police department not just at the scene but later at the station house and downloaded into the computer forever i think yo you'll fundamentally changed the nature of the privacy of the founding
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